Democracy as a system of Government has been criticized by
many great scholars. Some, like Winston Churchill have called it “the worst
form of Government”. This is just a reflection on the fact that Democracy is
felt by some to be an instrument that can be easily exploited. On the other
hand, many scholars and political thinkers like the Former President of USA,
Abraham Lincoln have famously described Democracy as “a government of the
people, for the people and by the people”. The betterment of this concept would
surely make the social order and increase the contentment in people.
Furthermore, this would help achieve the basic spirit of constitution that
strives to achieve the maximum benefit for the people.
One of the major instrumentalities for the betterment of
Democracy is the concept of Rule of Law. Rule of Law is one of the most
significant political ideals of any nation. The essence of Rule of law can be
understood best in the words of Tom Bingham, who stated that all people and
authorities within the State, whether public or private, must be bound by and
subject to the benefit of the laws publicly and in the same manner.[1]
Rule of law basically embodies the concept of supremacy of
law. It may be considered as an absolute Fundamental Necessity for a
disciplined and organized society.[2]
Any state that is committed to democracy will give utmost
important to Rule of Law. Stability at local, national and even international
levels is directly related to Rule of Law. Rule of Law ensures the notion that
the Constitution governs the actions taken by the State.[3] Rule
of law implies that every person must be subject to the Law, including the
lawmakers, law enforcement officials and even Judges in courts.[4]
If we turn to the history of lawmaking all around the world,
we can easily find the mention of the concept of supremacy of law. Right from
the to the Ancient Romans during the formation of the first republic, to
medieval thinkers like Hobbs, Locke and Rousseau who championed the concept of
Rule of Law through the Social Contract Theory, it has always been an integral
part of lawmaking. Justice Coke, who is considered as the originator of Rule of
Law, asserted the pre-eminence of the common law in England, even over the
authority of the crown. It was AV Dicey, however, who revived and
discussed the term in such a way that everyone could understand it.[5]
One of the foremost authorities on the doctrine of Rule of
Law is A.V. Dicey. In 1885, Dicey pointed out that Rule of Law means the
absolute supremacy of law and excludes the existence of any arbitrariness or
wide discretionary powers on part of the Government. He asserted that wherever
there was discretionary power, there was room for arbitrariness which could
hamper the legal freedom of the society.[6]
Dicey also attributed the concept of “equality before law
and equal subjection to the law of the land”, and even criticized the French
system called droit administratif, of having separate courts
to decide cases between the Government and the citizens.[7] He
further went on to say that the concept of Administrative law was non-existent
in Britain. In doing so, he ignored the privileges and immunities of the crown
and even statutes that conferred special powers over the executive.[8] However,
by 1915, after a few famous cases regarding administrative law, he himself
became aware of the emergence of Administrative Law. He propounded the
principle of complete absence of discretionary powers and inequality, which in
today’s day and age cannot be fully implemented. [9]
Rule of Law essentially implies that the executive must act
under the law and not by its own decree. This principle was always followed in
common law countries, and still serves as the basis for judicial review of
executive actions. Thus, it can be said that Administrative Law does not
infringe the Rule of Law, but on the other hand, promotes it.[10]
Since Britain followed the Dicean theory for a very long
time, Administrative Law did not develop into a satisfactory system there. It
is widely believed that, mere judicial review of executive action is not enough
to effectively control the Administration and some principles from the
French droit administrative should be incorporated into common
law countries. This is now being implemented in many common law countries and
efforts are being made to improve the system.[11]
In spite of the flaws in Dicey’s theory of Rule of Law, the
three principles[12] propunded
by him are celebrated even today:
1. Absence on arbitrary power
on the part of the government.
2. Equal subjection of all men
to the law of the land
3. Predominance of legal
spirit.
THE APPLICATION OF RULE OF LAW IN INDIA
In India, thinkers and philosophers have often attributed
the rule of law to be supreme and above the kings or rulers. Mentions have been
made in Upanishads about Law being the King of Kings. Even,
Chanakya in the Arthashastra talks about how the King should
be governed by law.[13] The
concept of Rule of Law in India has undergone many changes. The
pre-independence era saw the British prove not only the defects in the concept,
but also how its ideals were good on the paper only. Post-independence, the
situation is not the same.
Dicey always maintained that the British do not need any
form of Administrative Law or written law to keep a check on the functions of
the Government. He maintained that the natural law would be enough to ensure
the absence of arbitrariness on part of the executive. India also follows the
same concept of natural law, but also has written laws to keep a check on the
executive.[14]
The Constitution of India is what makes India a country
governed by the concept of supremacy of law. All the functionaries of the
Government, i.e., the Legislature, Executive and Judiciary, derive their
authority from the Constitution of India. The Constitution does not express the
concept of Rule of Law directly or explicitly, but does include its ideals
implicitly, under various articles and provisions.[15]
One of the major principles of Rule of Law is that the
Government does not possess any arbitrary power. This means that the Law is
supreme and no one is above the law. The is followed in the Indian Constitution
as well. For example, Article 13(1)[16] provides
that any law made by the Parliament has to be in line with the Constitutional
provisions, otherwise it can be declared as null and void. Article 21[17] on
the other hand clearly states that no one can be deprived of their right to
life and personal liberty except according to procedure established by law.
This provides a further check on the lawmakers of the country.
The second main ideal of Rule of Law, according to Dicey, is
the equal subjection of people to the law of the land. This has been inculcated
in Article 14[18],
which provides that there can be no discrimination against any person on the
basis of sex, religion, race or place of birth. This means that the law
considers everyone to be equal and provides everyone with equal protection,
except in certain cases.
The doctrine of separation of powers, although having no
place in the strict sense in the Constitution of India, is also implied. This
has been appreciated by the courts as well. In Re Delhi Laws Act case[19],
it was held that the functions of the Legislature, Executive and Judiciary have
been clearly earmarked and do not overlap. Later, in the landmark case of Kesavananda
Bharati[20],
the doctrine of separation of powers was termed to be part of the basic
structure of the Constitution and cannot be destroyed or changed by any
amendment. This just goes on to show the predominance of Legal Spirit in the
country. Thus, the Constitution fulfils all the criteria set out by Dicey to be
a country that follows the concept of Rule of Law.
The three points set out are not the only provisions
following the concept of Rule of Law. The view in Bachan Singh v. State
of Punjab[21] can
be reiterated to best explain this. It was stated that Rule of Law can be found
in the entire Constitution and is, thus, one of its basic features.
PRACTICAL APPLICATION OF RULE OF LAW IN INDIA
Even though Dicey’s criteria of Rule of Law are met by the
Constitution of India, it must be pointed out that contrary to Dicey’s view,
India does have a foundation of Administrative Law to govern the actions of the
Government. Chapter I of Part V of the Constitution of India[22],
governs all the aspects of the Executive. In addition to this, there exist
various laws to further ensure compliance.
In reality though, India does not fair very well when it
comes to the rampancy of corruption in the country. India was ranked a very low
81st on the Corruption Perception Index, 2017.[23] Even
according to the World Justice Project’s Rule of Law index, which measures
adherence to the Rule of Law by various countries across the world, India ranks
a lowly 62 out of 113 countries measured.[24] The
parameters for this report included - Constraints on Government Powers, Absence
of Corruption, Openness of Government, Fundamental Rights and its applications,
Order and Security, Enforcement of Regulation, Existence of Civil Justice and
Criminal Justice.[25]
Even though the situation in India regarding Rule of Law
might not be very reassuring, as compared to other countries across the world,
the situation is definitely improving. The ranks achieved by India in the
reports mentioned above[26] has
improved by a great extent over the years. In addition to this, the judiciary
in India is considered to be the best and the strongest in the world. The
Supreme Court of India in its various judgments has given the utmost importance
to the concept of Rule of Law.
In the celebrated case of ADM Jabalpur v. S. Shukla[27],
the misuse of the Government’s power to impose emergency and deprive people of
their fundamental rights was considered. The dissenting judgment given by
Khanna, J., pointed out that the absence of Article 21 does not mean that the
Government can deprive a person of their right to life and liberty, unless it
is according to procedure established by law.
Later in the case of Chief Settlement Commr., Punjab,
v. Om Prakash[28],
it was held that Rule of Law is one of the most important features of the
Constitution of India and allows courts to test all administrative actions
according to the standard of legality. The case of Satvant Singh Sahwney v. D.
Ramarathanana[29] pointed
out that every executive action that is arbitrary in nature must be supported
by a legislative authority.
Thus, we can see that even if rule of law may not be
perceived to be strictly followed in the country, some form of it will always
persist. The courts have time and again ensured that Rule of Law in maintained
in the country. In Maneka Gandhi v. Union of India[30] and
Union of India v. Raghubir Singh[31],
the Supreme Court of India has ensured that no arbitrary action of the
Government cannot, in any manner, infringe the rights of the citizens.
Even if we just look at the Constitution of India, and not
the decisions of the courts, there exist many provisions for the protection of
Rule of Law. While there have been many major instances of corruption on part
of Government Agencies, they have been brought out only because of the action
of various constitutional bodies like the Central Vigilance Commission and the
Comptroller and Auditor General against the perpetrators.[32] Thus,
Rule of Law is adequately protected and maintained in the country, even though
it might not seem like it.
CONCLUSION
The Constituent Assembly of India drafted a Constitution
that established a country that is governed by the law, and not by people.
Every person in India is subject to the same laws unless the law itself says so
otherwise. This was thought to be an impossible feat, by political thinkers and
philosophers all over the world.
In addition to this, the courts of law have also
strengthened the mechanism of Rule of Law in the country. Each and every time a
question of arbitrariness has come up before any court of law in India, the
letter of the law has always prevailed. In doing so, the courts ensure smooth
delivery of justice to all citizens.
There may be many problems in the law that have led to huge
scams recently, but the predominance of legal spirit has effectively and
efficiently brought justice to the citizens as well as the perpetrators for all
the harm done. Thus, it can be safely said that Rule of Law is not only
followed in India, but it is upheld as one of the most important ideals in its
Constitution.
[1] Tom
Bingham, The Rule of Law (London: Allen Lane, 2010) p. 8
[2] Jain,
M. and Jain, S. (2013). Principles of Administrative Law. 6th ed.
LexisNexis, p.13.
[3] Blandine
Kriegel, The State and the Rule of Law (Princeton University
Press, 1995), passim.
[4] Hobson, Charles. The Great Chief
Justice: John Marshall and the Rule of Law, p. 57 (University Press of
Kansas, 1996.
[5] Mahajan,
V. (2010). Jurisprudence and legal theory. 5th ed. Lucknow: Eastern Book
Co.
[6] Supra, note
2.
[7] THE
LAW OF THE CONSTITUTION 198 (8th Ed.)
[8] Supra, note
2.
[9] Jain,
M. and Jain, S. (2013). Principles of Administrative Law. 6th ed.
LexisNexis, p.14.
[10] Harry
W. Jones, The Rule Of Law And The Welfare State, 58 Col LR 143
(1958)
[11] Jain,
M. and Jain, S. (2013). Principles of Administrative Law. 6th ed.
LexisNexis, p.15.
[12] A.V
Dicey, Introduction to the study of Law of the constitution, 8th
Edition (Macmillan, London 1914).
[13] Mahajan,
V. (2010). Jurisprudence and legal theory. 5th ed. Lucknow: Eastern
Book Co.
[14] Jain,
M. and Jain, S. (2013). Principles of Administrative Law. 6th ed.
LexisNexis, p.16.
[15] Jain,
M. (2017). Indian Constitutional Law. 7th ed. LexisNexis.
[16] Article
13(1), The Constitution of India, 1949
[17] Article
14, The Constitution of India, 1949
[18] Article
21, The Constitution of India, 1949
[19] In
Re Delhi Laws Act Case, AIR 1951 SC 332
[20] Kesavananda
Bharati v. State of Kerala, AIR 1973 SC 1461
[21] Bachan
Singh v. State of Punjab, AIR 1982 SC 1325
[22] Chapter
I, Part V, Constitution of India, 1949
[23] E.V.,
T. (2018). Corruption Perceptions Index 2017. [online]
www.transparency.org. Available at:
https://www.transparency.org/news/feature/corruption_perceptions_index_2017#table
[Accessed 16 Jul. 2018].
[24] World
Justice Project (2018). Rule of Law Index 2017-2018. Rule of Law Index.
[online] World Justice Project. Available at: https://worldjusticeproject.org/sites/default/files/documents/WJP-ROLI-2018-June-Online-Edition_0.pdf
[Accessed 16 Jul. 2018].
[25] World
Justice Project. (2018). WJP Rule of Law Index 2017–2018. [online]
Available at:
https://worldjusticeproject.org/our-work/wjp-rule-law-index/wjp-rule-law-index-2017%E2%80%932018
[Accessed 16 Jul. 2018].
[26] Supra,
notes 23 and 24.
[27] ADM
Jabalpur v. S. Shukla, SC 1976 AIR 1207
[28] Chief
Settlement Commr., Punjab, v. Om Prakash, SC 1969 AIR 33
[29] Satvant
Singh Sahwney v. D. Ramarathanana, AIR 1967 SC 1836
[30] Maneka
Gandhi v. Union of India, AIR 1978 SC 597
[31] Union
of India v. Raghubir Singh, 1989 AIR 1933
[32] Kumar, B. (2014). Rule of Law in India. [online] Lawctopus. Available at: https://www.lawctopus.com/academike/rule-of-law-in-india/ [Accessed 20 Jul. 2018].
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